forth a demand or refusal to perform, as required by Act June 7, 1893 (P. L. 345). [Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 296 316; Dec. Dig. § 154.*] 3. HIGHWAYS (§ 76*)—VACATION-AUTHORITY. The board of commissioners of a township of the first class has no authority, under Act June 7, 1901 (P. L. 510), to vacate a road partly within and partly without the township. [Ed. Note. For other cases, see Highways, Cent. Dig. § 256; Dec. Dig. § 76.*] refusal to perform the act or duty. But the fact appears in the petition that the defendants have vacated and closed up this highway. There could be no more significant refusal to open and maintain it than the action of the defendants in vacating and closing it. Why give them an opportunity to open and maintain that which they had vacated and closed? That such vacating and closing had the character of a refusal is Appeal from Court of Common Pleas, Dela- shown by the answer, wherein they defend ware County. Mandamus by the Rector, Church Wardens, and Vestrymen of St. David's Church, to require William H. Sayen and others, commissioners of the township of Radnor, to open and keep in repair a road. From judgment granting peremptory mandamus, defendants appeal. Affirmed. elected shall against opening and maintaining, because they had vacated and closed. We see nothing in this feature of the defense to stand in the relators' way. [3] 3. This brings us to the consideration of the question whether this highway has This consideration been legally vacated. commences with the general road law, which is the act of June 13, 1836, P. L. 551. The first section is: "That the court of quarter sessions * shall have power * * Broomall, J., in the court below filed the following opinion: “The relators by petition pray for a writ of mandamus directed to the commissioners of Radnor township, to appoint' viewers, and upon their report a township of the first class, requiring them and at the next court the whole proceedings shall be entered on record, and thenceforth to open and maintain in good repair a certain highway in said township. This peti- such road shall be taken, deemed and altion is presented under the provisions of the lowed to be a lawful public road or highway. act of March 19, 1903 (P. L. 32): "The sever- The eighteenth section is: "The courts aforesaid shall * * * have authority al courts of common pleas, have the power to issue writs of mandamus to change or vacate the whole or any part of * public road.' The twenty-secto all officers * in any or for any township within the ond section is: Provided that nothing in county.' The answer of the defendants this act shall be construed to give authority avers: (1) That there is no such special in- to any of the courts of the commonwealth to terest shown in the relators as entitles them vacate any lane, street or highway, within to this prerogative writ; (2) that the stat- any city, borough, town plot, or any town or village.' Notwithstanding this proviso, utory requirement of a previous demand or refusal is not averred in the petition; (3) the court of quarter sessions has jurisdiction that the highway has been vacated. A de- to vacate highways in townships. The jumurrer has been filed to this answer. The risdiction has no other place upon which to real bone of contention in this case is wheth- operate than in townships, and this notwither the highway has been vacated, but the standing the prohibition of jurisdiction in other questions will have to be disposed of, towns and villages. Townships of the first and they will be taken up first. class are nothing more than a township, with some change in the form of government, and with some additional specified powers. They are not municipal corporations. Dempster v. United Traction Co., 205 Pa. 70, 54 Atl. 501. We, therefore, start with the proposition that the jurisdiction to vacate highways in the defendant township is in the quarter sessions. To what extent has this been changed by the act of June 7, 1901 (P. L. 510)? The first section of that act is: The board of township commissioners,' upon petition of property owners, 'shall have power to enact, [1] "1. The relators are the owners of land on both sides of the highway. As such, it is manifest that there is an interest possessed beyond that of the public at large. The highway is the means of entrance and exit from the abutting land. It is a source of continuous interest with respect to the use of the highway, and is a source of permanent interest in that the abutting land has a value by reason of fronting on the highway. The public at large would have no motive to conserve the highway for the protection of the abutting owner. We agree with the conclusion reached by Yerkes, J., in Com. v. Doyles- vacate, town Supervisors, 16 Pa. Co. Ct. R. 161, that owners of property on a public highway may have a mandamus to compel the supervisors to keep it in repair. This requires no further discussion. [2] "2. It is true that by virtue of the act of June 8, 1893 (P. L. 345), it is prescribed that the petition shall set forth a demand or * survey, lay out, widen, straighten, and relay all ** streets within the township.' Provision is then made for notice and a hearing, and after such hearing and consideration of the mat ter, should the said board or a majority thereof decide in favor of granting the prayer of said petition, they shall make written report, together with a draft or survey of said road, street, lane or alley, fixing the width * thereof N and * streets.' In placitum 4, "To regulate the * streets they shall have all other needful jurisdiction over the same.' This impliedly includes the power to vacate, because of section 27, where it is provided that complaint may be made to the quarter sessions, by any person aggrieved by any regulation in relation to streets, 'provided that every jury appointed to view, review, lay out, widen, or straighten, or vacate any road or part of road in any borough of this commonwealth, shall have due reference to the town plot,' etc. The jurisdiction to lay out streets in a borough is in the borough authorities, under the acts of April 3, 1851 (P. L. 320), and April 22, 1856 (P. L. 525), but the jurisdiction to lay out a road partly in a borough and partly outside is in the quarter sessions. Somerset & Stoystown Road, 74 Pa. 61. Boroughs have exclusive jurisdiction in the vacation of their streets. In re Osage Street Vacation, 90 Pa. 114. The jurisdiction to lay out a road or street in a borough is exclusively in the borough authorities. South Chester Road, 80 Pa. 370; Parkesburg Boro. Streets & Alleys, 124 Pa. 511, 17 Atl. 27. But if partly in a borough and partly in a township the jurisdiction is in the quarter sessions. Verona Boro. Road, 21 Wkly. Notes Cas. 531; Cassville Boro. Road, 4 Pa. Super. Ct. 511; Chester & South Chester Road, 2 Chest. Co. R. 438. The quarter sessions has no jurisdiction where the road to be laid out is wholly within two adjoining boroughs. West Liberty & Knoxville Roads, 20 Pa. Super. Ct. 586. But not so as to two adjoining townships of the first class. In re Road in Scott Township & Union Township, 17 Pa. Dist. R. 791. In Com. v. Female College, 42 Pa. Super. Ct. 419, there had been a turnpike road extending from Harrisburg to the diamond in Chambersburg borough. The turnpike company abandoned the road within the borough, which thereafter became a public street. Afterward the borough authorities vacated it, and it was held that they had power to do so. But the only part of the road which could be vacated was the part in the borough. The turnpike road could not be vacated. The two sections had differ "The defendants filed in the office of the clerk of quarter sessions a report of the vacation of the highway under consideration; but, this being filed without warrant of law, no force of res adjudicata can be attributed to a failure to file exceptions to it, and no laches can be interpreted from such failure. It appears that the highway in question was vacated on the petition of property owners. But is this highway under the act of 1901 a highway within the township? True the termini and the whole route of the section vacated are within the township. But this section is part of a public road which begins at the Valley Forge road in the adjoining township of Newtown and extends therein 21038/100 feet, where it crosses the line dividing the townships of Newtown and Radnor and ends in the township of Radnor. Where a public road runs into or through a township of the first class, may the board of township commissioners under the act of 1901, vacate a section of the road within the township? Seeing that the act of vacation is a withdrawal of the public user, did the act of 1901 intend that the board of town-ent characteristics. The borough street was ship commissioners should have the power to withdraw, not only the user of the public whom they represent, but also the outside public, whom they do not represent? If so, then the court of quarter sessions might lay out a public road through a township of the first class, and the board of township commissioners might proceed at once to vacate the part of it within the township and there by nullify the action of the court. We cannot think that the act intended this. "A reference to the analogy of boroughs sheds some light on the question. Boroughs are empowered by the general borough law of April 3. 1851 (P. L. 320), in section 2, pl. 2. not the same kind of a road as the turnpike road outside. Considered with reference to the susceptibility to vacation, the street was entirely within the borough. The very question seems to be decided with reference to boroughs in Palo Alto Road, 160 Pa. 104, 28 Atl. 649, where it is held that where there is a road partly within a borough and partly without, the quarter sessions has jurisdiction to vacate a part of that within the borough. The exclusive jurisdiction of boroughs over streets is limited to those which begin and end in the borough. This case was decided under local laws conferring jurisdiction on the quarter sessions, with no such exclusion second section of the act of June 13, 1836. | ond codicil thereto attached bearing date the But in the case in hand, there is no exclusion of townships of the first class from the operation of the act of 1836. Therefore while the case cited is not a direct authority, the analogy is complete. "We come, therefore, to the conclusion that the board of township commissioners had no legal authority to vacate the road in question. It, therefore, remains a lawful public highway, and the plaintiff is entitled to a peremptory writ of mandamus to open and maintain the said highway in good repair. Judgment is rendered in favor of the plaintiffs and against the defendants, with costs." Argued before FELL, C. J., and BROWN, MESTREZAT, STEWART, and MOSCHZISKER, JJ. Charles F. Da Costa, of Philadelphia, for appellants. Maskell Ewing, Jr., and V. Gilpin Robinson, both of Philadelphia, for appellees. 1st day of September, 1894, and on the 11th day of January, 1896, duly probated by the register of wills of the county of Lehigh, wherein, in referring to the aforesaid messuage or tenement and tract of land, he states the contents thereof to be "about one hundred and fifty (150) acres of land, more or less," and designates the same as situated in the township of Salisbury aforesaid, bounded by lands of Simon Kline, Tilghman P. Kline, John Worman, Paul Keck, Henry Kline, and others. The decedent left to survive him a widow, Agnes Kemmerer, and the following children, namely: Mary A. Backenstoe, the plaintiff, Sarah Ann Kemmerer, intermarried with Philip B. Kemmerer, Leah K. Leidy, intertin Kemmerer, Jr., all of whom are of age. married with Thomas H. Leidy, and MarNo children of Martin Kemmerer predeceased him leaving issue living at his death. Mary A. Backenstoe is still living, was married to the said Jacob M. Backenstoe, and PER CURIAM. The judgment is affirmed was born January 18, 1846. The said Jacob on the opinion of Judge Broomall. (214 Pa. 295) BACKENSTOE v. HUNSICKER. (Supreme Court of Pennsylvania. Feb. 23, 1914.) 1. WILLS (8 614*)-CONSTRUCTION-LIFE ES TATE. M. Backenstoe preceded the said Martin Kemmerer in death, having died on the 18th day of December, 1895, leaving to survive him as his widow the said Mary A. Backenstoe, and the following children, namely: Martin J. Backenstoe, William A. Backenstoe, and Sylva B. Logan, intermarried with Jacob T. Logan. The said Sylva B. Logan has since died, to wit, on the 29th day of May, 1909, leaving to survive her her husband, Jacob T. Logan, and two minor children, to wit: Sylva Louis Logan and Paul Backenstoe Logan, who have Robert J. S. Butz for their guardian. Mary A. Backenstoe, the daughter of the said testator, Martin Kem[Ed. Note.-For other cases, see Wills, Cent. merer, was in possession of the premises and Dig. §§ 1393–1416; Dec. Dig. § 614.*] 2. WILLS (§ 598*)-CONSTRUCTION-ESTATE CONVEYED. Where a will bequeathed realty to testator's daughter during the natural life of herself and her husband, or the survivor of them, and thereafter to his daughter's children or their heirs, and charged $15,000, on account of such bequest, against the daughter's share of his estate, the gift was a life estate only to the daughter and her husband. Where a sum of money is required to be paid by the devisee without words of limitation, a fee passes. (Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1327-1331; Dec. Dig. § 598.*] Appeal from Court of Common Pleas, Lehigh County. Action by Mary A. Backenstoe against Charles O. Hunsicker. From a judgment for defendant, plaintiff appeals. Affirmed. Case stated to determine marketability of title to real estate in Salisbury township. The following facts were agreed upon: Martin Kemmerer, late of the city of Allentown, died on the 4th day of January, 1896, seised in his demesne as of fee, amongst other lands, of and in a certain messuage or tenement and tract of land, situated in the township of Salisbury, in said county. The decedent left a last will and testament in writing bearing date the 30th day of April, 1886, with a codicil thereto attached bearing date the 27th day of April, 1893, and a sec received the rents, issues, and profits thereof from the time of the death of the said testator, Martin Kemmerer, on the 4th day of January, 1896, and the said plaintiff has continued in the possession thereof either by herself or her tenants ever since. That Mary A. Backenstoe, the plaintiff, by articles of agreement with the defendant, Charles O. Hunsicker, agreed to grant the property in the township of Salisbury to the defendant in fee clear of all incumbrances by a good and sufficient deed, and on Novem ber 1, 1913, tendered a deed to the tract in question, which defendant refused to accept, alleging as his reason for so doing that the title in fee simple to the tract had not become vested in the plaintiff under the provisions of the will of Martin Kemmerer, deceased. [1] The court entered judgment on the case stated for the defendant in the following opinion by Trexler, P. J.: "The will of the testator provides, among other things: 'Second-It is my will and I do order and direct that my daughter Mary A. now the wife of Jacob M. Backenstoe shall For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes * during tribution of the estate may appear to be inequitable. [2] "Where a sum of money is required to be paid by the devisee without words of limitation, a fee passes. Lobach's Case, 6 Watts, 167. "There seems to be a distinction that, when a charge is made on an estate alone, and there are no words of limitation, the devisee takes for life, but, where the charge is on the person of the devisee in respect to the estate in his hands, he takes a fee by implication. But here there are words of limitation, and therefore this rule does not apply. And at best this rule can only be invoked where the testator's intentions are in doubt, and the devise is indefinite. Hinkle's Appeal, 116 Pa. 490, 9 Atl. 938. have all that certain farm the natural life of my daughter Mary A. and her husband Jacob M. Backenstoe or the survivor of them and they shall have the use benefit and income of the same during their natural life and after the decease of my said daughter Mary A. and her husband Jacob M. Backenstoe said farm shall come to the children of my daughter Mary A. Backenstoe or to their lawful heirs share and share alike and for which farm my daughter Mary A. Backenstoe shall be charged the sum of fifteen thousand dollars ($15,000) which sum shall be charged to her I mean to say said amount shall be deducted from her share of inheritance out of my estate and each of my two other daughters Sarah Ann the wife of Philip B. Kemmerer, and my daughter Leah the wife of Thomas H. Leidy shall have the "The same may be said as to the use of the right to take fifteen thousand dollars ($15,- word 'come,' and the expression that the 000) of my best mortgages, judgments or shares shall be even. We know not what promissory notes so that would bring them passed in the mind of the testator when he even with their sister Mary A. Backenstoe.' made his will; but the words used in the inWhich is altered in the testator's second cod-strument are supposed to express what he inicil as follows: And further I order and di- tended. If we construe Mary A. Backenrect where I have ordered in the second item stoe's interest as a fee, what estate goes to in my said annexed will that my daughter her husband, for evidently the testator wishMary A. now the wife of Jacob M. Backen-ed to give an estate equally to them? It was stoe should be charged with fifteen thousand to be for their use, benefit, and income, and dollars for the farm that I have ordered for her and now it is my will and I do order that she shall be only charged twelve thousand dollars for said farm and my daughter Sarah Ann now the wife of P. B. Kemmerer and my daughter Leah now the wife of Dr. T. H. Leidy shall only have the right for taking only twelve thousand dollars each of my mortgages etc. in place of fifteen thousand dollars mentioned in second item of my aforesaid will.' "There seeins to be little doubt as to the testator's intention. The estate of Mary A. Backenstoe is to be for life, and after the termination of the life estate to her children or the children's lawful heirs, share and share alike. The limitation of the first estate is definite. "The use of the word 'children' certainly indicates an estate directly derived from the testator, and not descended from Mary A. Backenstoe or her husband. The use of the words 'children' and 'heirs' shows that the terms were not used interchangeably, but had each its distinct meaning in the mind of the testator. "It is argued that the expression employed by the testator stating that his children should be even in the distribution of the estate, and that the word 'come' employed in indicating the passing of the estate to the children, and that there was a sum charged for the land, led to the conclusion that a fee simple in the first taker was intended. we to the survivor of them. If the wife died before the husband, he would, if the estate be a fee simple, acquire the entire estate, for they held it by entireties. Thus the estate might pass to one not of the blood of the testator. This we can safely say was not the testator's intention. The testator wished to reserve the farm for his daughter and her husband for their lives. He had a right to do so, and in this regard his purpose to my mind is clearly expressed. "Now, December 29, 1913, according to the terms of the case stated, judgment is entered for the defendant.” Argued before FELL, C. J., and BROWN, POTTER, ELKIN, and MOSCHZISKER, JJ. H. W. Schantz, of Allentown, for appellant. Fred B. Gernerd, of Allentown, for appellee. “Notwithstanding these expressions, must not forget that the testator had a right to dispose of his estate as he pleased. We should not try to change the will, even if dis-, A policy made without interest is a "wager policy" having nothing in common with insur ance but the name and form. [Ed. Note. For other cases, see Insurance, Cent. Dig. § 165; Dec. Dig. § 119.* For other definitions, see Words and Phrases, vol. 8, pp. 7368, 7369.] 2. INSURANCE (§ 119*)—"WAGER POLICY"-| mised premises; that said lease was dated WHAT CONSTITUIES. 23d day of July, 1909, and was for a period of 10 months, with a provision that either party might determine the same by giving to the other party three months' notice prior to the expiration of the term, but in default of such notice, the lease should continue from year to year; that said lease was so continued at the end of each current term thereWhere defendant company had insured of by failure of either party to give notice plaintiff against loss by fire of the rents of to determine the same during the times herecertain premises, and at the time plaintiff was inafter set forth; that this lease contained a subtenant of the first floor at a yearly rental. the provision that in the event of the total and had sublet the premises with a provision terminating the lease on destruction of the build- destruction of the demised premises by fire ing by fire, and the building was destroyed the rents should cease from the date of such thereby, plaintiff was not entitled to judgment | fire, and possession of the demised premises on the policy. 3. INSURANCE (§ 123*)—LIABILITY ON POLICY -DESTRUCTION OF BUILDING. [Ed. Note-For other cases, see Insurance, Cent. Dig. §§ 168-171; Dec. Dig. § 123.*] Appeal from Court of Common Pleas, Philadelphia County. Action by the Moving Picture Company of America against the Scottish Union & National Insurance Company of Edinburgh. Judgment for plaintiff, and defendant appeals. Reversed. should be surrendered by the lessee to the lessor. It was averred further, that in July, 1910, the said premises 928-928 Market street, were purchased by Max and Adolph Berg; that on the 13th January, 1912, the leased premises and the entire building were totally destroyed by fire, and that the rent therein ceased in accordance with the terms of the lease; that while the time necessary to restore the premises to the same tenantable From the record it appeared that the ac- condition as before the fire would have been tion was on an insurance policy in the sum six months, yet the building laws of the state of $5,000, issued 21st February, 1911, by the prevented the restoration of the premises defendant company, insuring the plaintiff to the same condition as they were in before company "against all direct loss or damage the fire, and, finally, that since the date of by fire to the following described the fire the said Royal Amusement Company, property while located and contained as de- plaintiff's lessee, had not paid any rent whatscribed herein and not elsewhere, to wit, on ever to plaintiff; that plaintiff had not rethe rents of the brick buildings and addi- ceived since the fire any rent from the detions, including additions and extensions, sit- fendant or any other person, for the said uate 926-928 Market. street, Philadelphia, premises. The action was to recover a full Pennsylvania, rear of Nos. 920-22 24 Market loss under the policy, to wit, the sum of $5,Street." The statement of claim averred 000 with interest. To the cause of action as that at the time of the execution and deliv- thus stated the defendant company filed an ery of the policy of insurance, prior thereto, affidavit of defense, in which it was averred: and at the time of said fire (13th January, First, that the premises destroyed could have 1912) the plaintiff company leased the first been restored within six months from the floor of said described premises, which con- date of the fire to the same condition they sisted of three floors, under an agreement were in before, notwithstanding any builddated 19th January, 1909, the lease contain- ing laws of the state; second, that by reaing the following provision: "Lubin further son of the fire the plaintiff did not sustain agrees to and hereby does sublet to the com- any loss by reason of any conditions or propany the first floor of premises Nos. 926-928 visions contained in the insurance policy, but Market street, Philadelphia, for the remain- that the Royal Amusement Company made der of the term during which Lubin is in no payments of rent for any time after the possession of the said premises, as tenant fire solely because of the condition in its under lease with Felix Isman, agent, dated lease releasing it from all liability for payApril 4, 1907, for the yearly rent or sum of ment of rent in the event of the total de$14,000, payable monthly in advance, in sums struction of the demised premises; third, of $1,166.66, on the first day of each month, that said Sigmund Lubin (plaintiff's lessor) during the said term; rent to begin from was a tenant under Felix Isman, agent for July 20th, 1909." The statement further the owner under a lease dated April 4, 1907, averred that at the time of the execution and which demised to Isman the entire premdelivery of the insurance policy, and prior ises 924-928 Market street, and which conthereto and from thence during all the years tained the following provision: "In the event thereinafter set forth, the plaintiff leased the of the total destruction by fire, or total defirst floor of said premises to the Royal struction, by other casualty, the rent shall Amusement Company, a corporation, etc., at cease from the date of such fire, or other casa rental of $1,166.67 per month, or $14,000| ualty, and possession of the premises shall per year, which rental was during all of said be surrendered by the lessee to the lessor"; times the fair rental value of the said de-fourth, that about 19th January, 1912, Max |